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Advising  a  Woman  as  to 
KHer  Legal  Rights 


Modern  American  Law  Lecture 


Blackttone  IiMtitute,  Chicago 


http://www.archive.org/details/aclvisingwomanastOOtuckiala 


ADVISING  A  WOMAN   AS  TO  HER 
LEGAL  RIGHTS 


BY 

GEORGE  FOX  TUCKER,  PH.D.,  LL.B. 

MEMBER  OF  THE  BOSTON  BAR 


One  of  a  Series  of  Lectures  Especially  Prepared 
for  the  Blackstone  Institute 


BLACKSTONE    INSTITUTE 
CHICAGO 

Copyright,    1920.    by    Blackstone    Institute 


T 


GEORGE  FOX  TUCKER 


GEORGE  FOX  TUCKER 

The  author  of  this  Lecture,  "Advising  a  Woman 
as  to  Her  Legal  Rights,"  has  been  a  member  of 
the  bar  for  about  forty  years.  In  this  period  of 
extensive  experience  before  the  courts  and  in  the 
practice  of  law  he  has  acquired  a  fund  of  knowl- 
edge, unusual  in  its  richness  to  those  interested  in 
legal  problems.  Here  you  can  obtain  the  informa- 
tion which  will  assist  you  to  avoid  the  pitfalls  that 
ensnare  those  who  seek  to  advise  women  as  to  their 
legal  rights. 

Mr.  Tucker  was  born  at  New  Bedford,  Massa- 
chusetts, on  January  19,  1852.  He  received  the 
degree  of  Bachelor  of  Arts  from  Brown  Univer- 
sity at  Providence,  Rhode  Island,  in  1873,  and  his 
degree  of  Bachelor  of  Laws  at  Boston  University 
in  1875.  Subsequently,  the  degree  of  Doctor  of 
Philosophy  was  conferred  upon  him.  He  practiced 
law  in  New  Bedford  from  1876  to  1882  and  then 
removed  his  law  office  to  Boston  where  he  is  in 
practice  today. 

From  1890  to  1892,  Mr.  Tucker  was  a  member 
of  the  Legislature  of  the  Commonwealth  of  Massa- 
chusetts. In  1892,  he  was  appointed  the  Official 
Reporter  of  the  Decisions  of  the  Supreme  Court  of 
Massachusetts.  He  served  in  this  position  until  the 
year  1900. 

Mr.  Tucker  is  the  author  of  numerous  treatises 
and  articles  relating  to  the  law.  Among  the  im- 
portant are  **  Testamentary  Forms  and  Notes  on 
Wills,"  and  "Manual  of  Massachusetts  Corpora- 
tions." He  is  joint  author  of  Gould  and  Tucker's 
"Notes  on  United  States  Statutes,"  and  with  Dr. 
Wilson  of  Harvard  on  "International  Law." 

Judge,  attorney  and  layman  will  find  "words  of 
wisdom"  in  these  interesting  and  profitable  pages. 


ADVISING  A  WOMAN   AS   TO   HEE 
LEGAL  EIGHTS 

By 
George  Fox  Tucker,  Ph.D.,  LL.B. 

Under  the  old  English  law  women  had  compara- 
tively few  rights.  A  single  woman  was  more  unfet- 
tered than  a  married  woman,  but  her  freedom  and 
privileges  were  largely  abridged  and  her  right  to  the 
property  she  possessed  was  taken  away  when  she 
became  a  wife.  Up  to  within  recent  years  the  sphere 
of  effort  and  activity  open  to  women  in  England  was 
a  limited  one ;  an  educated  woman  had  little  hope  for 
anything  other  than  the  position  of  governess,  and 
a  moderately  educated  or  an  uneducated  one  was  not 
permitted  to  compete  fairly  with  men.  The  old  Eng- 
lish rule  largely  obtained  here  in  early  days,  but  it 
has  been  modified  by  statute,  so  that  now  in  most 
states  women  have  nearly  as  many  rights  and  privi- 
leges as  men,  and  in  a  few  are  on  an  equal  footing 
with  them. 

L    SINGLE  WOMAN 

The  status  of  a  female  during  minority  is  gener- 
ally the  same  as  that  of  a  male;  she  is  subject  to 
parental  control  and  discipline.  However,  statutes 
in  some  jurisdictions  permit  her  to  make  a  will  at 
eighteen,  and  even  provide  for  the  termination  of 
minority  at  that  period.    After  reaching  full  age, 

5 


6  MODERN  AMERICAN  LAW  LECTURE 

whether  eighteen  or  twenty-one,  she  has  nearly  every- 
where the  same  authority  to  contract  and  do  business 
as  a  man.  The  common  complaint  of  women,  both 
single  and  married,  that  they  are  taken  advantage 
of  in  business  transactions,  is  often  well  grounded; 
and,  as  a  practical  consideration,  it  may  be  said  that 
this  is  a  good  reason  why  a  woman  should  not  enter 
into  commercial  or  business  engagements  without 
first  consulting  with  a  competent  lawyer.  Women, 
whether  married  or  single,  possessed  of  property, 
generally  inherit  it,  and  are  therefore  without  the 
experience  which  comes  from  the  diligence  and  fru- 
gality required  in  its  accumulation.  They  are  too 
often  prone  to  believe  that,  if  they  know  how  to  col- 
lect their  rents  and  dividends,  deposit  them  in  a  bank, 
and  keep  a  check  book,  they  are  thoroughly  equipped 
for  all  commercial  and  contractual  undertakings.  In 
such  cases  a  legal  adviser  may  be  of  great  assistance. 
A  little  knowledge  of  affairs  may  cause  a  woman, 
who  takes  no  counsel,  to  go  too  far  and  thus  get  into 
trouble. 

While  a  single  woman  is  generally  entitled  to  make 
a  will  and  dispose  of  her  property  as  she  chooses, 
yet  her  attention  should  be  called  to  the  fact  that 
marriage  may  revoke  the  instnunent.  Both  the  com- 
mon law  and  the  statutes  deal  pretty  freely  with  this 
subject.  In  some  jurisdictions  marriage  and  the 
birth  of  a  child  are  prerequisites  to  revocation;  in 
others,  marriage  alone  is  sufficient.  At  any  rate  it  is 
probable  that  nearly  every  woman  on  marriage  will 
of  her  own  volition  destroy  her  will  and  make  a  new 
one. 


LEGAL  RIGHTS  7 

n.    SINGLE  WOMAN  WHO  IS  ABOUT  TO  MARRY 

A  single  woman,  possessed  of  means,  who  is  about 
to  marry,  should  have  called  to  her  attention  the 
advisability  of  making  provision  for  the  enjoyment 
of  her  property  free  from  the  interference  and  con- 
trol of  her  husband.  In  many  cases  this  is  not  neces- 
sary; in  some  it  is  urgent,  as,  for  example,  in  the 
case  of  a  woman  marrying  a  man  of  little  or  no  busi- 
ness experience  or  ability,  or  a  man  of  extravagant 
tastes  and  habits,  or  a  widower  with  children.  There 
are  in  many  jurisdictions  two  methods  available. 
Statutes  frequently  provide  that  both  men  and 
women  before  marriage  may  make  contracts  in  writ- 
ing that,  after  marriage,  the  property  of  either  shall 
remain  or  become  the  property  of  the  husband  or 
wife,  according  to  the  terms  of  the  contract.  They 
also  generally  provide  that  a  schedule  of  the  prop- 
erty must  be  annexed  and  that  both  the  contract  and 
the  schedule  must  be  recorded  at  th€  registry  of 
deeds,  or  in  some  other  office. 

The  second  method  is  a  trust  deed.  By  this  in- 
strument the  single  woman  conveys  all  her  property 
(enumerated)  to  a  trustee  or  trustees  to  pay  her  the 
net  income  during  life,  and,  on  her  decease,  to  con- 
vey the  property  or  principal,  discharged  of  all  trust, 
to  certain  designated  remaindermen.  It  is  to  be 
noted,  however,  that  in  some  states  such  a  trust  deed 
may  be  declared  void,  as  a  violation  of  the  provisions 
of  the  statute  of  wills.  If  the  law  of  the  jurisdiction 
permits  such  a  trust  deed,  the  creator  may  desire 
to  insert  a  provision  to  the  effect  that  neither  prin- 
cipal nor  income  shall  be  liable  to  be  taken  for  her 


8  MODERN  AMERICAN  LAW  LECTURE 

debts  by  attachment  or  by  any  other  legal  process 
whatever.  There  are  at  least  two  objections  to  such 
a  provision — the  first  an  ethical  one,  for  it  is  obvious 
that  it  is  not  very  creditable  to  put  your  property 
out  of  your  hands  so  that  it  may  never  be  liable  for 
your  obligations — the  second  a  legal  one,  there  being 
strong  probability  that  the  courts  would  hold  such  a 
provision  illegal  and  void.  We  should  distinguish 
this  doctrine  from  that  which  applies  in  the  case 
of  wills.  Courts  have  frequently  held  that  a  testator 
may  provide  in  the  creation  of  a  trust  that  the  in- 
come shall  not  be  attachable  in  any  way  by  the  cred- 
itors of  the  beneficiary,  and  this  on  the  ground  that 
the  restrictions  are  proper  in  that  the  intent  of  a 
testator  in  giving  property  to  others  should  prevail. 

m.    MARRTF.D   WOMAN 

In  a  few  jurisdictions  a  married  woman  possesses 
all  the  authority  and  power  to  contract  and  do  busi- 
ness which  her  husband  enjoys,  including  that  of 
contracting  with  him  as  freely  as  if  he  were  a  stran- 
ger ;  but  in  most  states  this  latter  authority  does  not 
exist,  the  wife  not  being  empowered  to  enter  into 
any  contracts  or  business  dealings  with  her  husband, 
although  in  other  respects  enjoying  almost  all  the 
rights  which  he  possesses.  In  treating  the  subject  of 
married  women,  little  or  no  attention  will  be  paid 
to  her  old  common  law  status,  but  her  advanced  po- 
sition, secured  by  liberal  statutes  and  adjudications, 
will  be  considered.  It  will  be  impossible  to  cover 
the  entire  subject  in  every  detail,  but  it  is  believed 
that  attention  will  be  called  to  all  the  important 


LEGAL  EIGHTS  9 

matters  of  right,  authority,  duty,  obligation,  liability 
and  relationship.  Of  course  statutes  differ  in  dif- 
ferent localities  and  the  decisions  of  the  courts  are 
not  always  uniform,  but  the  general  principles  of 
law  relating  to  married  women  are  now  pretty  nearly 
the  same  in  all  American  jurisdictions. 

It  is  proposed  to  consider  the  subject  under  the 
headings  of  domestic  relations  and  coromercial  rights 
and  powers,  etc. 

1.    Domestic  Relations 

It  is  generally  said  that  cohabitation  is  a  mutual 
duty.  This,  of  course,  follows  from  the  very  fact  of 
marriage,  but  cohabitation  may  be  terminated  at  any 
time  by  the  husband  leaving  the  wife  or  by  the  wife 
leaving  the  husband.  Then,  as  we  shall  hereafter 
see,  all  kinds  of  questions  arise  as  to  obligations  and 
duties,  especially  on  the  part  of  the  husband  when 
the  wife  leaves  him  for  just  cause.  In  the  case  of 
a  separation  there  does  not  seem  to  be  any  authority 
vested  in  the  courts  of  this  country  to  enforce  cohabi- 
tation, but  there  is  a  right  of  action  against  third 
parties  who  alienate  the  affections  of  either  husband 
or  wife,  and  thus  occasion  a  separation. 

The  old  rule  and  custom  was  for  the  wife  to  follow 
the  husband,  and  this  still  obtains,  for  nearly  every- 
where the  husband  may  choose  the  domicile,  and,  if 
the  wife  refuses  to  accept  it  without  just  cause,  her 
act  constitutes  desertion.  There  are,  however,  ex- 
tenuating circmnstances — ^the  husband  must  act  in 
good  faith,  and  the  wife  would  be  justified  in  not 
following  him,  if  her  health  were  likely  to  be  endan- 


10  MODERN  AMERICAN  LAW  LECTURE 

gered  or  she  would  be  subjected  to  unusual  hard- 
ships. 

In  old  days  the  husband  had  the  right  in  some  cases 
to  chastise  the  wife — a  right  which  seems  both  brutal 
and  ridiculous  from  the  modern  standpoint.  His 
present  power  over  her  personal  freedom  is  limited. 
Of  course,  he  may  restrain  her,  if  she  would  attempt 
to  assault  others,  and  he  may  use  proper  force  to 
defend  himself  against  her  attacks,  but  he  has  no 
more  right  to  punish  her  than  she  has  to  punish  him ; 
and,  in  case  of  disagreements  or  quarrels,  followed, 
perhaps,  by  desertion,  the  courts  furnish  the  only 
means  for  the  redress  of  wrongs. 

From  time  immemorial  the  duty  to  afford  his 
family  reasonable  support  has  rested  on  the  hus- 
band, and  there  are  statutes  in  some  states  placing 
the  obligation  directly  upon  him.  What  is  reason- 
able support  is  an  elastic  element.  The  husband  *s 
means  and  his  station  in  life  must  be  taken  into  con- 
sideration. What  would  be  reasonable  in  one  case 
might  be  excessive  luxury  in  another.  Courts  are 
frequently  called  upon  to  decide  the  question.  If  the 
wife  leaves  the  husband  without  just  cause,  he  is  not 
required  to  support  her. 

While  this  lecture  does  not  touch  upon  real  estate, 
it  is  deemed  best  to  include  a  reference  to  the  regu- 
lation of  the  household  and  the  direction  of  the  af- 
fairs of  the  family.  The  husband  has  generally  the 
right  to  regulate  the  household  and  exercise  control 
of  the  family,  and  this  of  course  implies  a  general 
authority  over  the  home. 

In  Shaw  v.  Shaw,  17  Conn.  189,  195,  it  is  said: 


LEGAL  EIGHTS  U 

**As  the  husband  must  have  the  right  to  say  who 
shall  be  admitted  to  his  home,  and,  in  some  measure, 
to  regulate  the  intercourse  of  his  wife,  the  Court 
cannot  draw  a  line  by  which  his  authority  can  be 
restrained.  The  fancies  of  a  jealous  man  are  as 
ungovernable  as  those  of  a  mad  man,  and  often  show 
themselves  as  suspicious  of  their  best  friends.  But 
the  unreasonable  exercise  of  the  authority  of  a  hus- 
band, in  such  case,  has  never  been  held  to  be  that 
kind  of  cruelty  which  would  authorize  a  separation." 
This  decision  was  rendered  some  years  ago.  To-day 
it  is  probable  that  a  court  would  take  into  considera- 
tion all  the  circumstances.  Undoubtedly,  when  the 
wife  owns  the  house,  she  would  be  permitted  or 
ought  to  be  permitted  a  pretty  broad  authority. 

In  most  states  the  husband  is  not  entitled  to  the 
wife's  earnings,  as  formerly.  Many  statutes  provide 
that  on  marriage  her  separate  personal  property 
shall  remain  her  own  and  that  she  may  manage  the 
same,  and  also  that  afterwards  acquired,  in  the  same 
manner  as  if  she  were  sole  or  single.  Statutes  in 
some  jurisdictions  provide  that,  if  she  carries  on 
business  on  her  own  account,  she  shall  file  in  a  desig- 
nated public  office  a  certificate,  stating  her  name  and 
that  of  her  husband,  the  nature  of  the  business  and 
where  it  is  to  be  carried  on,  and  similar  facts ;  other- 
wise the  personal  property  employed  in  the  business 
shall  be  liable  to  be  attached  as  that  of  her  husband, 
and  he  shall  also  be  liable  on  all  contracts  made  in 
the  prosecution  of  the  business.  Here  it  should  be 
noted  that  in  most  places  marriage  does  not  confer 
on  the  wife  any  interest  in  her  husband's  personai 


]fl  MODERN  AMERICAN  LAW  LECTURE 

property,  and  he  may  dispose  of  it  at  will  without 
her  consent. 

Questions  often  arise  as  to  the  ownership  of  house- 
hold goods.  The  wife  is,  of  course,  entitled  to  those 
which  actually  belong  to  her,  but,  in  the  absence  of 
evidence  on  the  subject,  the  presumption  would  prob- 
ably be  that  the  household  goods  belong  to  the  hus- 
band. In  the  event  of  her  death,  he  would  probably 
be  justified  in  claiming  articles  which  may  have 
belonged  to  her,  but  to  which  she  never  laid  claim. 

If  the  wife  lives  apart  from  the  husband  without 
his  consent  and  without  good  cause,  he  cannot  be 
compelled  to  contribute  to  her  support,  nor  can  she 
pledge  his  credit.  In  Peaks  v.  Mayhew,  94  Me.  571, 
574,  the  court  said  that  a  wife  who  **  deserts  her  hus- 
band without  just  cause,  at  the  same  time  forfeits 
all  right  to  have  her  maintenance  and  support  from 
him,  and  carries  with  her  no  authority  to  pledge  his 
credit  even  for  articles  which  might  be  essential  to 
her  health,  comfort  and  support."  If  husband  and 
wife  separate  by  mutual  agreement,  he  is  still  liable 
for  her  necessaries  unless  he  has  made  suitable  pro- 
vision for  her. 

The  wife's  wearing  apparel,  jewelry,  etc.,  are 
nearly  everywhere  hers.  These  may  come  as  gifts 
from  the  husband,  but  they  are,  nevertheless,  re- 
garded as  her  own  property.  While  she  is  living  the 
question  of  ownership  would  rarely  be  raised ;  on  her 
death  the  husband  would  rarely  be  inclined  to  assert 
ownership. 

One  of  the  most  important  features  of  the  relations 
of  husband  and  wife  relates  to  necessaries  and  house- 


LEGAL  RIGHTS  13 

hold  expenses.  Generally,  it  is  only  in  eases  of  neces- 
sity that  the  law  constitutes  the  wife  the  husband's 
agent  with  authority  to  pledge  his  credit,  and  the 
necessaries  must  be  suitable  to  his  station  in  life.  His 
liability  is  not  affected  by  the  fact  that  the  wife  has 
property  of  her  own.  The  following  have  been  held 
to  be  necessaries — provisions,  clothing,  lodgings, 
suitable  furniture,  wearing  apparel,  articles  of  do- 
mestic comfort  and  convenience,  expenses  of  sickness 
and  reasonable  services  of  domestics.  It  is  difficult 
to  lay  down  a  rule  which  will  cover  all  cases.  A  hus- 
band may  forbid  all  persons  giving  his  wife  credit 
in  his  name.  A  notice  in  a  newspaper,  to  be  effectual, 
must  be  brought  home  to  the  persons  giving  credit. 
But  in  such  cases  the  husband  must  suitably  support 
his  wife  or  he  will  be  liable. 

In  some  of  the  states  the  '* family  expenses"  are 
a  charge  on  the  property  of  both  husband  and  wife, 
or  either  of  them.  In  Colorado,  for  example,  a  stat- 
ute provides  that  **the  expenses  of  the  family  and 
the  education  of  the  children  are  chargeable  upon 
the  property  of  both  husband  and  wife  or  either  of 
them,  and,  in  relation  thereto,  they  may  be  sued 
jointly  or  separately."  The  courts  of  that  state  have 
decided  that  such  expenses  are  not  confined  to  neces- 
saries, but,  to  be  family  expenses,  they  must  be  for 
things  received  by  the  family,  or  some  member  of  the 
family.  Generally,  however,  what  are  family  ex- 
penses must  be  determined  by  the  facts  of  each  case. 
They  may  be  said  to  be  as  a  rule  very  much  like 
necessaries  enumerated  above. 

Where  a  wife  is  supported  at  the  public  expense, 


14  MODERN  AMERICAN  LAW  LECTURE 

there  are  decisions  to  the  effect  that  necessaries  fur- 
nished her  as  a  pauper  may  be  recovered  by  the  city 
or  town,  and  there  are  likewise  decisions  to  the  con- 
trary. 

When  a  man  cohabits  with  a  woman  to  whom  he  is 
not  married  he  cannot  set  up  that  defense  in  an  action 
for  necessaries  furnished  her,  as  he  is  precluded  or 
estopped  by  the  fact  that  he  has  held  her  out  as  his 
wife.    It  is  reputed  marriage  that  makes  him  liable. 

It  seems  that  in  many  jurisdictions  the  husband  is 
liable  for  the  funeral  expenses  of  his  wife  and  for 
medical  services  rendered  her,  independent  of  the 
fact  that  she  leaves  property.  Where  such  law  exists, 
it  is  suggested  that  the  wife  make  provision  by  her 
wiU. 

Many  questions  arise  when  the  wife  acts  as  agent  of 
the  husband.  While  there  is  no  such  inherent  power, 
and  the  agency  may  occasionally  arise  by  implication 
of  law,  it  is  usually  conferred  by  express  appointment 
by  the  husband,  as,  for  example,  by  power  of  attor- 
ney. Agency  by  implication  may  be  inferred  when 
she  is  left  in  charge  of  his  affairs  during  his  absence, 
or  where  he  departs  without  intending  to  return,  but 
no  agency  can  be  inferred  from  his  absence  for  a 
limited  period,  or  from  the  fact  that  she  does  not 
live  with  him.  Undoubtedly  the  wife  acting  as  agent 
of  her  husband  binds  him  by  her  acts  coming  within 
the  scope  of  her  agency.  The  fact  that  the  husband 
knew  at  the  time  of  the  acts  performed  by  the  wife 
in  his  name,  and  did  not  object,  may  entirely  conclude 
hiJi::.  We  have  already  considered  the  agency  of  the 
wife  in  binding  her  husband  for  necessprVs 


LEGAL  RIGHTS  15 

Frequently  a  husband  acts  as  agent  of  his  wife  by 
her  appointment.  It  is  sometimes  said  that,  owing 
to  the  presumption  of  the  influence  of  the  husband 
over  the  wife,  the  agency  should  be  clearly  estab- 
lished. So  established,  she  is  bound  by  his  acts  within 
the  scope  of  his  agency.  It  is  said,  "When  the  hus- 
band acts  for  the  wife  by  representing  her  in  place 
of  a  guardian  ad  litem,  by  confessing  judgment 
against  her  lands,  by  compromising  her  actions,  by 
appointing  an  attorney  to  defend  a  suit  in  which  both 
are  jointly  interested,  by  accepting  a  deed  for  her, 
by  making  an  election  for  her,  by  releasing  a  mort- 
gage executed  to  her  before  marriage,  or  by  accepting 
payment  of  money  due  her,  the  wife  is  bound  by  his 
acts.'*    (16  Cyc.  1241.) 

An  important  matter  in  a  married  woman's  life  is 
the  custody  and  control  of  the  children.  The  old  rule 
that  the  father  was  all  powerful  has  been  greatly 
modified  by  statutes,  and  the  circumstances  of  each 
case  are  likely  to  prevail.  Either  parent  may  prop- 
erly chastise  the  child,  and  it  is  said  that  generally 
the  father  has  a  right  to  direct  the  child's  religious 
faith.  In  the  case  of  marital  differences,  courts  favor 
giving  the  mother  the  custody  of  the  children,  espe- 
cially when  they  are  of  tender  years ;  and  the  prefer- 
ences of  the  children,  which  are  generally  for  the 
mother,  are  allowed  great  weight.  The  duty  to  sup- 
port the  children  is  primarily  on  the  father,  but, 
on  his  death,  passes  to  the  mother.  The  husband 
cannot  be  compelled  to  support  his  step-children.  If 
the  parents  separate  voluntarily,  or  the  wife  leaves 
the  husband  with  good  cause,  the  father  must  sup- 


16  MODERN  AMERICAN  LAW  LECTURE 

port  the  children,  but  not  if  she  leaves  him  without 
good  cause,  taking  the  children  with  her.  If  the 
children  have  means,  the  father  must  still  support 
them ;  but  this  rule  is  said  not  to  apply  to  the  mother. 
However,  in  most  cases  the  property  possessed  by 
children  comes  from  a  deceased  parent;  it  is  sug- 
gested that  the  father  or  mother  put  a  special  direc- 
tion in  his  or  her  will  as  to  whether  the  share  given 
the  child  shall  be  used  for  the  child's  support  and 
education,  or  shall  be  turned  over  with  its  accumula- 
tions to  the  child  on  reaching  majority.  Although 
not  perhaps  quite  germane  to  the  subject  in  hand, 
it  is  suggested  that,  when  the  husband  gives  by  will 
all  his  property  or  most  of  it  to  his  wife,  he  insert 
a  provision  like  the  following:  "I  particularly  re- 
quest my  wife  never  to  sign  or  indorse  any  promis- 
Bory  note  or  other  obligation  of  any  of  our  children 
or  go  as  guarantor  or  surety  upon  their  bonds  or 
other  obligations.  If  she  is  inclined  to  assist  them 
in  a  pecuniary  way,  I  trust  that  she  will  do  so  from 
her  income  and  not  from  her  principal,  and  that  there 
will  be  no  discrimination,  but  that  the  children  will 
be  treated  alike.'' 

There  is  considerable  law  as  to  necessaries  fur- 
nished minor  children,  when  the  father  fails  to  sup- 
port them.  If  he  be  dead  and  the  mother  fails  to 
support  them,  she  would  probably  be  liable. 

A  widowed  mother  is  now  generally  entitled  to  the 
services  and  wages  of  her  minor  children.  The  right 
of  action  for  injuries  to  a  child  and  for  loss  of  serv- 
ices passes  to  the  mother  on  the  death  of  the  father. 
Generally  gifts  by  a  parent  to  a  child  belong  to  the 


LEGAL  RIGHTS  17 

child.  Only  where  there  are  statutes  on  the  subject 
is  the  parent  liable  for  the  torts  of  the  child ;  other- 
wise, of  course,  if  they  are  committed  with  parent's 
knowledge  or  authority.  And  the  same  rule  applies 
to  crimes  committed  by  the  child. 

When  occasion  arises  for  the  appointment  of  a 
guardian,  the  husband  and  wife  having  separated, 
the  father  in  some  jurisdictions  is  preferred  by  stat- 
ute ;  but,  in  the  absence  of  statute,  the  courts  would 
consider  the  circumstances  and  be  governed  by  them. 
In  some  states,  minors  fourteen  years  of  age  or  more 
may  name  their  guardians. 

In  disposing  of  her  property  by  will  a  wife  is  gen- 
erally placed  on  the  same  basis  as  her  husband,  al- 
though in  some  jurisdictions  the  interest  which  each 
has  in  the  estate  of  the  other  differs  considerably. 
If  the  wife  proposes  to  give  property  to  her  husband 
in  trust  for  the  children,  it  is  suggested,  as  he  will 
be  the  natural  guardian,  that  there  is  little  need  of 
naming  one.  The  same  rule  would  apply  when  the 
husband  gives  property  to  the  wife  in  trust  for  the 
children. 

2.    Transaction  of  Business 

While  contracts  between  husband  and  wife  are 
void  at  common  law,  equity  will  sometimes  enforce 
them.  It  has  already  been  said  that  in  a  few  states 
husband  and  wife  are  allowed  by  statute  to  contract 
directly  with  each  other,  and  that  in  most  other  juris- 
dictions the  wife  has  now  nearly  all  the  rights  and 
privileges  of  the  husband,  except  that  they  cannot 
enter  into  contracts  with  or  make  conveyances  to  each 
other.    The  suggestions  hereinafter  offered  are  in- 


18  MODERN  AMERICAN  LAW  LECTURE 

tended  to  apply  to  states  where  women  have  liberal 
rights,  but  are  not  permitted  to  contract  or  do  busi- 
ness directly  with  their  husbands. 

A  married  woman  ought  not  to  transact  business 
unless  the  best  reasons  exist  for  it,  for  it  is  plain  that 
her  property  ought  not  to  be  subjected  to  the  risks 
and  hazards  of  trade.  Sometimes  a  woman  engaged 
in  business  marries  and  then  continues  it,  perhaps 
as  a  matter  of  necessity.  Sometimes  she  engages  in 
it  as  a  means  of  increasing  the  family  resources,  and 
sometimes  she  carries  it  on  in  the  name  of  her  hus- 
band or  he  carries  it  on  in  her  name.  These  last- 
named  transactions  are,  however,  generally  sug- 
gestive of  irregularities,  if  not  fraud.  It  has  already 
been  stated  in  this  article  that  in  some  states  statutes 
provide  that,  if  a  married  woman  carries  on  busi- 
ness, she  must  file  a  certificate  in  some  public  office. 

Great  care  should  be  taken  in  the  case  of  loans 
and  advances  between  husband  and  wife.  In  juris- 
dictions w^here  the  parties  are  not  permitted  to  con- 
tract with  each  other,  such  loans  and  advances  may 
lead  to  trouble,  if  there  is  a  lack  of  harmony,  or  if 
the  rights  of  third  parties  become  involved. 

Bills  and  notes  given  by  the  husband  to  the  wife, 
or  by  the  wife  to  the  husband,  are  not  to  be  encour- 
aged. Here  again  the  difficulties  liable  to  arise  spring 
from  differences  between  them,  or  more  often  from 
the  rights  and  demands  of  third  parties.  Undoubt- 
edly a  married  woman,  as  the  agent  of  her  husband, 
may  make  or  indorse  bills  and  notes,  and  accept  bills. 
If  she  signs  a  note  jointly  with  her  husband  she  will 
probably  be  bound. 


LEGAL  RIGHTS  19 

Generally  a  gift  of  personal  property  from  hus- 
band to  wife  will  be  upheld  in  jurisdictions  where 
the  right  of  contract  between  them  is  not  permitted. 
Such  gifts  commonly  are  of  money,  portable  articles, 
deposits  in  bank,  shares  of  stock,  etc.  The  better 
way  in  all  cases,  except  in  that  of  money,  is  to  make 
the  transfer  through  a  third  party.  But  the  gift 
may  be  void,  if  the  rights  of  creditors  are  affected. 
Pretty  nearly  the  same  rules  apply  in  the  case  of 
gifts  from  the  wife  to  the  husband.  Her  gifts  to 
third  parties  are  valid. 

Not  infrequently  the  wife  goes  as  surety  upon  the 
husband's  bond,  or  as  guarantor  on  his  contracts. 
If  the  law  does  not  permit  contracts  between  them, 
such  practice  is  not  advisable.  In  such  cases  it  is 
for  the  creditor  to  demand  other  security.  His  ac- 
ceptance of  her  name  may  prove  embarrassing  in 
the  case  of  litigation. 

At  common  law  neither  husband  nor  wife  can 
maintain  an  action  in  tort  against  the  other.  Stat- 
utes permitting  such  action  must  be  explicit,  for  it 
has  been  held  that  statutes  giving  a  married  woman 
power  to  sue  and  be  sued  do  not  authorize  an  action 
of  tort  against  her  husband. 

A  married  woman  nearly  everywhere  may  appoint 
an  attorney  and  act  as  agent  herself,  submit  matters 
to  arbitration,  sue  and  be  sued,  compromise  law  suits, 
act  as  executor,  administrator  or  trustee,  and  even 
hold  certain  offices;  and  she  is  liable  for  her  own 
torts.  It  is  to  be  observed  that  when  she  enters  into 
a  contract,  either  individually  or  as  attorney  or 
agent,  the  place  of  performance  should  be  stated, 


90  MODERN  AMERICAN  LAW  LECTURE 

for,  if  made  in  the  place  where  she  has  liberal  pow- 
ers and  to  be  executed  in  a  jurisdiction  where  her 
contractual  rights  are  limited,  embarrassment  may 
result. 

Generally  a  married  woman  is  liable  for  fraudu- 
lent misstatements  and  misrepresentations. 

A  policy  of  insurance  on  the  life  of  her  husband 
for  the  wife's  benefit  becomes  her  separate  property, 
and  she  may  assign  the  same.  The  proceeds  thereof, 
after  his  death,  are  liable  for  her  debts,  but  are  not 
liable  for  his. 

3.    Separation 

This  lecture  is  not  designed  to  cover  matters  per- 
taining to  divorce,  but  a  few  considerations  in  case 
of  separation  and  separate  maintenance  should  be 
included.  When  separated  from  her  husband,  the 
wife  transacts  business  and  takes  care  of  her  prop- 
erty, as  before,  and  their  relations  from  the  commer- 
cial standpoint  are  little  changed.  The  common 
method  of  separation  is  to  live  apart  without  any 
written  agreement.  Such  agreements,  if  in  writing, 
should  be  carefully  drawn,  for,  if  the  object  is  to 
divorce  husband  and  wife,  the  agreement  is  against 
public  policy  and  void.  If  the  agreement  is  for  sepa- 
ration alone,  it  is  good  in  some  jurisdictions  and  void 
in  others.  In  Foote  v.  Nickerson,  70  N.  H.  496,  the 
subject  is  treated  at  length.  In  this  case  it  was  held 
that  a  voluntary  agreement  for  a  separation  between 
husband  and  wife  was  contrary  to  public  policy  and 
void. 

On  separation,  many  questions  arise  as  to  the  care 
and  custody  of  children.    Generally  there  will  be  no 


LEGAL  RIGHTS  21 

agreement,  but,  when  there  is  an  agreement,  cases 
have  held  that  provisions  giving  the  children  to  the 
wife  are  void,  as  interfering  with  the  duties  of  the 
husband  relative  to  them.  It  was  formerly  custom- 
ary in  the  case  of  a  separation  in  some  states  to  resort 
to  the  intervention  of  a  trustee;  but  now  that  the 
disabilities  of  the  wife  have  been  so  generally  re- 
moved by  statute,  a  trustee  is  rarely  necessary ;  but 
in  those  states  in  which  the  wife  cannot  contract  with 
the  husband,  an  agreement  of  separation  may  for 
that  reason  be  void. 

The  wife's  right  to  an  allowance  for  her  separate 
support  means  that  reasonable  maintenance,  which 
the  law  will  compel  her  husband  to  afford  her.  This 
right  ceases  on  his  death,  and  on  her  misconduct.  If 
they  resume  cohabitation,  the  allowance  will  be  dis- 
continued. When  the  wife  has  property  of  her  own, 
there  is  a  difference  of  view  as  to  whether  she  is  enti- 
tled to  an  allowance.  In  an  action  for  separate  sup- 
port, courts  generally  decree  a  temporary  allowance, 
and  in  some  jurisdictions  add  a  reasonable  amount 
for  counsel  fees. 

A  few  words  may  be  added  in  regard  to  abandon- 
ment. As  a  rule  the  husband  cannot  be  indicted  for 
abandoning  his  wife  and  refusing  to  support  her. 
But  there  are  exceptions.  Statutes  in  some  states 
provide  that  persons  who  run  away,  or  threaten  to 
run  away,  and  leave  their  wives  and  children  a  bur- 
den on  the  public ;  all  persons  who,  being  of  sufficient 
ability,  refuse  or  neglect  to  support  their  families, 
or  who  leave  their  wives  and  children  a  burden  on 
l:he  public,  shall  be  deemed  disorderly  persons.    See 


22  MODERN  AMERICAN  LAW  LECTURE 

People  V.  Malsch,  119  Mich.  112.  In  State  v.  Maclin, 
86  Mo.  App.  636,  it  is  said:  *'To  constitute  the  of- 
fense of  wife  abandonment,  the  abandonment  must 
be  made  without  good  cause  and  with  a  criminal 
intent." 

4.    Community  Property 

The  system  known  as  Community  Property  exists 
by  statute  in  Arizona,  California,  Idaho,  Louisiana, 
New  Mexico,  Nevada,  Texas,  Washington,  and  in 
Porto  Rico.  The  principle  is  that  all  property  which 
the  husband  and  wife  acquire  during  marriage,  by 
the  labor  of  either  or  both,  together  with  the  increase 
thereof,  belongs  beneficially  to  both  during  the  mar- 
riage relation. 

It  is  impossible  to  cover  here  the  ground  of  com- 
munity relations.  While  the  system  appears  to  be 
simple,  it  in  reality  bristles  with  legal  points  and 
problems — such  as  the  mode  of  creation,  the  law 
which  governs,  the  necessity  of  a  valid  marriage,  the 
application  of  marriage  settlements  and  their  con- 
struction and  operation,  the  property  which  consti- 
tutes community,  the  rents,  profits  and  improvements 
thereof,  the  earnings  of  husband  and  wife,  the  rela- 
tionship of  separate  property,  the  rights  of  husband 
and  wife  while  the  community  exists,  contracts,  gifts, 
etc.,  between  them,  sales  and  conveyances  by  them, 
their  liabilities,  rights  of  action,  the  rights  of  pur- 
chasers, questions  as  to  necessaries  and  family  ex- 
penses, bills  and  notes,  guaranty  and  suretyship, 
methods  of  dissolving  community,  administrations 
and  settlements,  etc.,  etc.  It  is  evident  that  the  attor- 
ney must  carefully  study  the  law  of  the  jurisdiction 
involved. 


LEGAL  RIGHTS  23 

SUMMARY 
It  is  obvious  that  the  above  remarks  are  merely 
a  partial  analysis  and  that  it  is  not  possible  in  a  brief 
talk  to  cover  all  the  points  of  so  broad  and  extensive 
a  subject.  The  duty  of  the  attorney  should  be  rather 
to  advise  a  woman — especially  when  she  is  married — 
how  to  avoid  perils  and  pit-falls,  rather  than  to  af- 
ford her  counsel  and  aid  when  she  gets  into  trouble. 
For  women,  single  or  married,  to  assume  the  hazards 
and  uncertainties  of  commercial  undertakings  is 
rarely  advisable.  The  small  percentage  of  men  who 
succeed  in  business  should  be  a  warning  to  women  not 
to  risk  their  resources  in  trade,  manufacturing  or 
any  kind  of  ventures.  While  dissensions  in  the  home 
produce  endless  trouble  and  bear  more  severely  upon 
the  wife  than  on  the  husband,  being  intensified  by 
differences  relative  to  the  custody  of  the  children,  yet 
one  of  the  most  pregnant  sources  of  vexation,  misun- 
derstanding and  litigation  is  the  pledging  by  the  wife 
of  her  property  for  her  husband,  signing  or  indorsing 
his  commercial  paper  or  giving  him  in  other  ways  an 
indirect  or  contingent  claim  upon  her  property.  The 
wife  indorses  his  note  or  pledges  her  pecuniary  re- 
sources for  his  benefit  in  the  belief  that  she  will  never 
be  called  upon  to  refund;  and,  as  probably  in  the 
majority  of  cases  she  is  called  upon,  the  duty  of  an 
attorney  seems  clear  to  advise  her  to  keep  her  prop- 
erty under  her  personal  control,  and  refrain  from 
signing  any  obligation  of  her  husband.  The  same 
counsel  should  be  given  in  regard  to  the  solicitations 
of  children.  Where  there  is  property  in  a  family, 
the  children  are  generally  brought  up  in  an  atmos- 


24  MODERN  AMERICAN  LAW  LECTURE 

phere  that  does  not  conduce  to  the  making  of  suc- 
cessful business  men.  A  mother's  love  for  and  confi- 
dence in  her  children  are  apt  to  prompt  her  to  give 
them  pecuniary  assistance,  or  to  set  them  up  in  busi- 
ness. The  result  is  nearly  always  disastrous,  and  the 
duty  of  the  attorney  is  to  warn  and  dissuade. 

Little  or  nothing  has  been  said  about  the  husband 
transferring  property  to  the  wife,  or  the  wife  trans- 
ferring property  to  the  husband  in  fraud  of  creditors. 
Such  proceedings  are  highly  reprehensible;  and  the 
duty  of  the  attorney,  if  consulted,  is  not  to  cover  up 
questionable  transactions,  but  to  decline  to  protect  all 
parties  to  fraud  and  imposition. 

The  above  points  and  suggestions  are  general  in 
their  nature;  and  the  purpose  has  been  to  present 
the  salient  features  of  a  very  broad  and  often  com- 
plicated subject.  Definite  statement  is  not  always 
possible,  as  the  laws  of  so  many  jurisdictions  are  to 
be  considered.  Recourse  is  constantly  to  be  had  to 
the  numerous  statutes  and  adjudications,  and  it  is 
to  be  remembered  that  changes  of  domicil,  and  trans- 
actions that  are  likely  to  involve  the  laws  of  different 
jurisdictions  are  sure  to  be  productive  of  complica- 
tions and  perplexities. 


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